This is a blog by a former CEO of a large Boston hospital to share thoughts about hospitals, medicine, and health care issues.

Thursday, July 17, 2008

What about punishment?

During these couple of weeks following our wrong-side surgery, a number of people have asked me if we intend to punish the surgeon in charge of the case, as well as other people in the OR who did not carry out the expected time-out procedure. My initial and immediate reaction has always been, "No, these people have been punished enough by the searing experience of the event. They were devastated by their error and distraught to think that they could have participated in an event that unnecessarily hurt a patient. The surgeon immediately reported the error to his Chief and to me and took all appropriate actions to disclose and apologize to the patient, as well as participate openly and honestly in the case review."

This reaction was supported by one of our trustees, who likewise responded, "God has already taken care of the punishment." But another trustee said that it just didn't feel right that this highly trained physician, "who should have known better," would not be punished. "Wouldn't someone in another field be disciplined for an equivalent error?" this trustee asked.

This is a healthy debate for us to have, but a comment yesterday made me realize that I was over-emphasizing the wrong point (i.e., the doctor's sense of regret) and not clearly enunciating the full reason for my conclusion. The head of our faculty practice put it better than I had: "If our goal is to reduce the likelihood of this kind of error in the future, the probability of doing that is much greater if these staff members are not punished than if they are." I think he is exactly right, and I believe this is the heart of the logic shared by our chiefs of service during their review of the case. Punishment in this situation is more likely to contribute to a culture of people hiding their errors rather than admitting them. And it is only by having a culture in which people freely disclose errors that the hospital as a whole can focus on the human and systemic determinants of those errors. I believe this conclusion is supported by most of the advanced thinkers in this field, but I ask them and others of you to comment on that theory of the case.

But, then we are left with a follow-on question: Under what circumstances does the need to punish someone trump the other concerns about institutional learning and a no-blame environment? Beyond the obvious case in which a doctor or nurse intentionally harms a patient -- where no one would doubt the application of punishment -- I am afraid that the answer is, "It depends."

We had a circumstance a couple of years ago in which a doctor intentionally left the OR to consult on another patient while his first patient was in mid-surgery. His logic was that there was a natural break in the procedure during which a tourniquet had to be released for a period of time to permit a limb to reprofuse, and that there was no risk to the patient by his absence. However, he left no attending physician in the room, only residents -- a clear violation of the rules. No harm whatsoever befell the patient, who in fact was ultimately very grateful to this surgeon for completing a very complicated procedure.

Upon review of this case, our Medical Executive Committee felt that the violation of an important rule was so clear that the surgeon should be penalized, and he was suspended for a period of time and the case was reported to the state licensing board.

A friend today asked me what would distinguish a case like that from the recent one in which our surgeon failed to conduct a time-out before beginning the operation. Honestly, it may have been the fact that a case had recently occurred at another hospital in town, where a surgeon left the OR and did put a patient more at risk, and where the publicity concerning that event was widespread. In short, everyone's sensitivity had been raised. But I think the MEC response had more to do with their conclusion that the surgeon knowingly and intentionally left the room unsupervised, feeling that the rule didn't really need to apply to him in that case.

Is that distinguishable from failing to conduct a time-out before a surgical case? I guess intent should matter. In the more recent case, the surgeon clearly did not intend to skip the time-out. His mind was on other things, and he did it inadvertently. While that is, in great measure, his fault, it also suggests to us hospital leaders that there is a flaw in the training we provide or the procedures we implement. In other words, we participated in this error by not having the wisdom to design a sufficiently fail-safe system that would protect the surgeon (and of course, the patient) from inadvertently missing the time-out.

Please understand that I am not saying this to absolve the surgeon from his responsibility. I am saying that to reiterate the point I make above: We should err on the side of encouraging disclosure and honesty about errors so we can properly do our job to re-design systems of care to reduce the chance of error.

But -- while knowing this may appear to contradict what I just said -- there might be cases in the future that are remarkably similar to the one we just had where we as a management team decide that a punishment should be meted out. It is not clear to me that we can have exact rules, in advance, that would draw the distinction. I think this is one area were we must maintain the right to exercise our discretion depending on the particular circumstances of the case.

31 comments:

Anonymous
said...

This is an absolutely critical question and one that others have addressed better than I ever could. In particular see the posts from July 9 2008 (on the BIDMC incident specifically) and Nov 5 2007 from Bob Wachter in San Francisco, on his blog Wachter's World, which address this very question and some of the research and thought processes surrounding it. (One organization has classified these errors by the intent underlying them as either: human error, at-risk behavior, or reckless behavior.)I think his posts and the associated commentary provide pretty good insight into this issue and strongly recommend the read.

I think I would look at the response and attitude of the surgeon when the error was brought to his attention. In the wrong-side case, it sounds like the surgeon was immediately aghast and abjectly apologetic, both to the patient and to his colleagues who were themselves tainted by the incident.

It sounds like the surgeon who left the OR mid-case did not understand that this was unacceptable and tried to defend his breaking of an established rule that "shouldn't apply." In that situation, "shame" won't serve as a sufficient deterrent, so there has to be a punishment.

Why don't you ask the patient what the punishment should be? After all, he/she is the one who was really injured by this event. Their life was turned upside down more than anyone in the OR even though some will disagree with that. Their opinion is significant in this case. If you ask, they may be a partner in your teaching process. Don't be afraid of them.

Or, will they later have complications from this error? Will they develop staph or sepsis? Will they die? Your problems may not be over. Think about the patient first not the cases that will be lost by your decision.

I have seen those that have committed errors treated like royalty following an event, which infuriates me. They messed up. Period. And should own regret and responsibility.

Most patients will say that they want something done so the surgeon isn't distracted again and forgets another life saving measure.

You are right, it usually depends on the circumstances of the case. You haven't investigated enough to know yet. Each case is different but I agree with Bob Watcher from what you've shared about the event so far. One month suspension for not following mandates and then return and teach about the event. Perhaps, advocating for systems that will prevent short cuts.

I know the surgeon involved in this case. He is not only a talented surgeon, but exceptionally caring and devoted to his patients. There is not an arrogant bone in his body, and this certainly did not happen because of an attitude that the rules did not apply to him. To say he is distraught over this incident would be the understatement of the year, and you do not exaggerate at all that he is punishing himself more than any sanctions ever could. Knowing him the way I know him, if I were the patient, I would tell him not to beat himself up and I would go back to him in a heartbeat to do the other side. I know that this patient probably has not had enough contact with him to know him as well, so I don't expect she would do the same, which is too bad. The fact that this happened with this particular surgeon means this could have happened to anyone, in any OR, in any hospital. The only "silver lining" is that publicizing the case has made EVERYONE even more vigilant. (El camino mas seguro es el recien robado.)

In case others don't read Wachter's post, I'd like to correct a factual error in your comment. He said IF the surgeon is a habitual violator of the mandate to perform timeouts, THEN there should be a one month suspension.

As for the patient, the malpractice system is for him to express himself and is a very effective deterrent. However, an arrangement such as Dennis Quaid's family reportedly made with the hospital in their twins' heparin dose error may be even more useful: demonstrate to the patient that the hospital has made effective system changes to minimize further errors of this type, in return for not having your pants sued off. If I were the patient (or Dennis) I would require at least a year's followup to show that errors have actually declined (outcomes vs. process).

Punishment has a role in error reduction, albeit a minor one. It must be metted out sparingly because, as discussed, it stifles error reporting. This has nothing to do with whether doctors or staff are involved. Punishment should be doled out only when the one making the error intentionally subverts the system, which otherwise would have prevented the error. In the case of the wrong sided surgery, the system, not the surgeon, failed. Nurses, scrub techs and anesthesia personel hold as much responsibility as the surgeon for calling the "time out". In this case, they all failed, so by definition, the system failed. The system only will improve by engaging them and others to reengineer a more error proof design. That will not happen if we waste time and energy castigating them. The "eye for an eye, tooth for a tooth" approach never worked that well anyway. The truent surgeon was punished with suspension of his priviliges, because he acted more autonomously than the wrong sided surgeon, and therefore carries more responsibility for his actions.

i'll ask again whether never events can be made to truly never occur or whether that is an unattainable goal. i think the latter. so any punishment should be made with that in mind, as well as the goal of not encouraging people to hide future incidents.

i'm not sure of the other incident where the attending left the room. residents are licensed physicians and at some point need to be able to be trusted to watch over vital signs and call if something untoward occurs. what about if an anesthesia attending is left in the room, does that count as okay? should the anesthesiologists not be allowed to leave the rooms as well? what about crna's? if you have a crna, is that close enough to an attending?

i guess i would vote for a sanction for the entire team. i do understand this impacts the physician a lot more than the other staff potentially, it will certainly follow him around in his future credentialing and licensing processes. sanctioning the team without sanctioning him would suggest special favoritism that i would not want to encourage. i think the last anonymous is confusing intent with responsibility, because they know the individual in question. it's sort of like when drunk drivers have an accident- they didn't mean it, but we still throw the book at them.ymmv.

I can only add that the general culture of America is at odds with the hospital culture you are trying to nurture. I'm sure I can't express my thoughts as well as you, but basically, Americans have a mindset that demands every wrong committed against them be punished and compensated. It's often viewed as a financial opportunity. There's no getting around it, we are a vindictive and self-centered society, for the most part.

Your discussion is about mistakes that might have been avoided. Just look at what patients do in response to excellent mistake-free care that goes poorly. Doctors cannot perfectly predict outcomes; indeed, they can't even always know for sure the best treatment.

But patients are results-driven. Your child has a birth defect? The obstetrician is to blame, even if it's genetic. It's not until you get to court that the doctor's actions are measured against what others would have done in the same circumstance is considered, and even then it's not always fair. There might be multiple choices for treating a patient, all of which have merit with the limited information available, but only one of which would result in a positive outcome.

We need a cultural change among patients. Blog on that.

By the way, I am not a medical professional, just an interested observer.

Paul - I also assume that this case will be presented at the surgical department's morbidity and mortality (M&M) conference. While not a "punishment," that is an opportunity for the other clinicians in the Department to discuss and learn from this experience in an professional and off-the record discussion. (I'm a bit removed from the clinical world - but I assume that M&M's still occur on a regular basis.)

In addition to the M&M review, might it not also be appropriate - and beneficial to the surgeon and others involved with the case - to have a one-on-one review of the situation and their thoughts with senior administrators involved with quality after a period of reflection - say 3 months? This might help those involve come to some closure, provide them the opportunity to share some additional insights, and help the hospital's administrators as well.

When I wrote my post at 5:41 I wasn't aware of the surgeon's significant regret written in post 7:37. However, I still think a 1 month suspension or even a voluntary sabbatical is in order which may disagree with Bob and Paul's opinion on this matter. Perhaps, presenting at the M&M would be an excellent teaching tool. I don't think that this case will involve a lawsuit if the patient is considered first and the institution and physician remain accountable. Collaborative law can work wonders. If anyone thinks that the courts are on the patient's side, that is an error.Teresa, after working tirelessly with patients and families that have experienced a preventable medical error, I find your statement inaccurate: "There's no getting around it, we are a vindictive and self-centered society, for the most part." Patients still love physicians, especially caring ones as this surgeon is now described, and for the most part don't want to be vindictive or cause anyone further harm. I think we all mostly good.

Suspension would increase the surgery waits for his patients, leaving them in pain. The better choice is Deming. Fix the system errors that permitted this mistake. The idea of blame is anti-scientific, not in accordance with the multi-factorial understanding of catastrophes.

Every situation is different, and it seems the response should be nuanced as well.

This is where you need to have really good skills at root cause analysis, to dig into what exactly happened and why. Sometimes there is at-risk behavior but it's because people need to work around an unwieldy situation, or because they needed to respond rapidly.

Even more important, there needs to be a clear understanding of behavioral expectations, i.e. staff won't be unfairly dinged if they made an error while trying to cope with an unwieldy system or process, but there are some rules that cannot be flouted.

Don't underestimate what a negative message it sends to your staff when someone ignores the rules or puts a patient at risk through reckless or at-risk behavior, and then doesn't suffer any consequences. It undermines everyone else who's trying to do things right.

I personally think that since the physician has taken appropriate actions following the error and has taken responsibility for what they needed to do in the following procedures, punishment (to me) would be excessive.

In comparing to the truant surgeon, I'm assuming that individual did not bring the breech of protocol to the attention of the administration, which would have been the display of responsibility that the surgeon at your hospital has displayed.

I don't see the purpose that punishment would serve at this point. I think they have been "punished" enough by responsibly dealing with all the fallout from the incident.

I haven't been following this exhaustively but I think that because of the nature of what happened, it might be a good idea to see if there are conflicting messages to staff members from official and unofficial expectations- i.e. an official message of following safety protocol but an unofficial message to perform such a high volume of procedures that it becomes advantageous to skirt parts of the official protocol in order to appease the unofficial pressures.

Retribution is a non-goal of any system of justice, internal or otherwise. The patient should be fairly compensated, but you should never think of this compensation as a form of punishment. Whether or not disciplinary measures are appropriate should be based exclusively on the expected effect of those measures.

Everyone makes mistakes, and making people more fearful of the consequences of those mistakes by punishing errors doesn't necessarily make the mistakes occur less often.

Head of faculty practice: "If our goal is to reduce the likelihood of this kind of error in the future, the probability of doing that is much greater if these staff members are not punished than if they are."

And Claus: "The better choice is Deming. Fix the system errors that permitted this mistake." (Little did I know that my heart and gut align with Deming.)

That's what I was getting at in my original comment: "The question is, what can we do that will make a difference, that will keep improving the system?"

I've gotten a new awareness from this thread: my gut now senses that making a difference is best served by the three-tier model - human error, at-risk, reckless.

And in assessing which tier applies ... therein lies the art. But speaking as someone whose gut has been at stake(!), I say, err in the direction of not squashing future openness.

Paul, transparency depends on TRUST....trust that one can report an error without getting whacked. I absolutely agree with your blog in both the lack of punishment for this event and reserving the right to punish for events in the future. If punishment were to be meted out, it should be spread to everyone in the OR who didn't call for a time-out. The point is that it wasn't only the surgeon's responsibility. This is what we are working very hard to spread throughout Cincinnati Children's and we are making slow progress. Best, Lee

Paul, I work at another hospital in your neighborhood and I can tell you right now that if the wrong-side surgery happened at our place the only thing we would get is an email IF it made the front page of the Globe/Herald due to court proceedings. I have been reading up about this case quite a bit, and I'm glad to see that you folks are tackling this head-on.

To my estimation (I am not a clinician, only an administrative person) - there is such a culture of the surgeon being the only one in the right, and when someone "lower-ranking" notices a step missed they are unwilling to speak out. Let this be a lesson to all support staff, nurses and interns that it is OUR responsibility to speak up in the name of patient care and safety in the face of a distraction or a rush. Yes, it is the surgeon's responsibility to do the time-out, but it is missed, then I would think that the others in the OR are empowered to prompt the surgeon.

As far as punishment is concerned - leave it be. I would suggest, if this hasn't happened already, some offer of counseling to be made available to all staff/clinicians involved.

Anonymous's query seems appropriate. Stunning actually from a non-surgeon perspective that something of the kind would even happen. Incomprehensible if the simplest of protocols are followed. Apparently the most basic quality control has not reached the operating room at top medical institutions yet.

"To say he is distraught over this incident would be the understatement of the year" from another Anonymous. Irrelevant that the surgeon is distraught or that he is an otherwise competent surgeon and good person. There is literally no excuse for this.

To repeat: following the most basic of basic quality-control procedures prevents this. I have read that some (perhaps most) surgeons traditionally consider it beneath them to complete a check list that would have prevented this. Check lists are mandatory. Breaching of that protocol leads to immediate dismissal of the offender. No exceptions. The offender is the surgical team leader, not an assignee to blame.

Retribution after the fact is counterproductive in this particular case. The surgeon has been shamed enough, but the patient is the one to determine any penalty (likely none, since patients are mostly reasonable and understanding of error assuming not debilitating the error).

Mr. Levy should set and enforce the protocol of consequences from this point forward.

While I feel horrible for everyone involved, I think there is a clear difference between not following a safety policy and making an error.. an error is when you misread something or miscalculate..skipping part of a safety check is not an error..I do believe hospitals should put systems in place that prevent people from skipping safety checks..but until they do it is unfortunately up to the people.. would the hospital protect a housekeeper who was injured if they didnt follow hospital policy??? not performing a time out is not a mistake its a voilation of hospital policy.. comapre to a motor vehicle accident..stepping on the gas instead of the brake is a mistake and thus an accident..racing to go thru a red light because you have some place to be is a safety violation

I'm an RN at BIDMC. I've seen others get terminated for much less. There was no discipline, just termination. And without a union, there's no recourse and no appeals process. Sorry to sound so simple and trite, but it's true. By not disciplining people for outrageous mistakes like this, you aren't creating a culture of full disclosure aimed at improving the system - you're giving an argument for those who are incompetent at their job to say "at least I didn't operate on the wrong side of a patient!" during their termination or disciplinary meeting. This error was in a class of its own. I don't expect to be disciplined when my patient falls out of bed - it's a necessary thing that every nurse will go through at every point in their career. I know it's going to be known by others and my superiors, so I report it so I don't look like an "at risk" individual trying to cover their mistakes. Likewise, I report my other errors so that I can learn from them and be taught how to avoid them in the future. I know that I'm human and I'm okay with it when something bad happens, but I try with all my heart and mind to avoid it from happening again. That's how you learn. But in my opinion, as someone in the trenches working side by side with surgeons and other nurses, not handing out some disciple to someone who makes a huge error like this is not going to achieve the culture you're looking for. In my 5 years at BIDMC, my observation is that most people do know the rules but choose to ignore them either out of laziness or that adolescent-like feeling of invincibility. I gave up a long time ago trying to get a certain group of surgeons to use calstat before entering a room - let alone wearing a gown while changing a dressing on a patient on contact precautions. BIDMC tried a friendly approach to improving handwashing - and while the numbers may be improving, the attitude is not. Those who do calstat are only doing so because they're tired of harassment and being given "tickets". Maybe these things seem unrelated, but in my mind they go hand in hand, and unless there is some real-world punishment handed out, at least in extreme cases like this one, BIDMC will never achieve its goal of eliminating patient harm. I understand the theory behind a culture driven practice change, but I also know the real world all too well.

I should make clear that the decision concerning disciplinary actions is not solely mine to make. That is the purview of the Medical Executive Committee, the group of clinical and administrative leaders who set the rules and regulations of clinical matters in the hospital. I am one member of that group out of just under 2 dozen who serve in that capacity.

Anon 8:20,The issue of punishment in a union versus a non-union environment is an interesting topic but not really on point here. But, when I talk with my colleagues around town who work in union environments, they often explain that the protections of the union system, as often as not, mean that people who do things wrong even intentionally are overly protected by the grievance process.

But on the current case, what if the error did not come from "laziness or that adolescent-like feeling of invincibility". What if it came from an oversight on the part of the surgeon, plus a failure of everyone else in the room to mention the fact that the timeout had not yet taken place? Does that change your view?

I sure get your frustration. And I'm acutely aware that I can't know (and thus can't evaluate) the specifics of the "terminated for much less" incidents you cite.

Messages like this deepen my awareness of the things managers at all levels carry on their backs: balancing the needs of the staff and the patients, including all the frustrations in all places.

Lord knows that in my seven hospitalizations last year I experienced the full range: nurses who seemed devoted to my care, and others who barely seemed to know who I was, much less care about my medical problems that weren't related to my current surgery. Fortunately I experienced no unpleasant doctors, though one did grumble openly about having to follow the Central Line procedure (which I'd read about here, and was discussing with him) - but he grumbled as he followed it, and his execution of it was the best of the four times I had it.

You mention "tickets." I wonder if there's something to be learned from noticing that this is a small-scale example of the middle tier of violations, the "at risk" tier we discussed the other day. I don't know, but "tickets" appear to be a carefully chosen intervention can help shift behavior, just as you say.

I personally hope you resume calling out the surgeons on any violation of practice. I suspect we are all capable of doing better than our daily norm, and if you were doing that, please resume. It reminds me of the story of the oil rig fatalities Paul's been writing about in related posts.

Keep the faith. I want full realization of the dream you had when you took on this profession. Don't let cynics beat it out of you.

Anon 8:20Perhaps I shouldn't have raised the union issue as it seems to be taking away from my main points.Also, I was aware that the surgeon and others say they were focused on other details which distracted them from the time out, and no that does not change my opinion. Critically ill patients in this hospital who need central line placements or other procedures in emergency situations still have time outs before the procedure. We are all responsible for knowing and following policies - the very policies which were created to prevent these things from happening in the first place - which is why they are even MORE important to follow when we're busy or in an emergent situation where minds are clouded. Therefore, a huge mistake like this that reflects poorly on the hospital should certainly be answered with some disciplinary measure - to all those involved - or else the culture becomes "it's okay to make ignorant mistakes because we're trying to make things better by learning from our mistakes" rather than "I better follow the procedures or else I'll hurt a patient and have my job and license threatened." That's the way our justice system works, which was developed with trial and error over time - and although ours isn't perfect, it's the best there is. It'd be nice to be all touchy-feely and have a nice open dialogue about our mistakes, but at the end of the day there needs to be repurcussions for not doing the simplest parts of your job. If you destroyed the hospital budget because you forgot a basic principle of mathematics, but you were trying your best while thinking about the best way to approach a component of it, and felt really bad about it, I would hope that the trustees would disciple you. (For the record, I know you've done the exact opposite - it was just an example). Thanks for your response to my comments.

The best, most painful punishment is investigation, reformulation of procedure, and retraining.

A hospital can expect a wrong site surgery yearly. It should now be every 10 years. The more important question is, how many today? If the hospital has had 2 or 10, the administrator must scramble to learn why, and what to do to get it within average range. Under Deming, no measure is too Draconian. Close the surgery service that exceeds the number, until fixed.

Punishment is a superstition. It fails to acknowledge the modern understanding of catastrophes. These are now seen as resulting from the simultaneous clustering of factors. The average number in a plane crash is 12. So scapegoating the surgeon, and thinking the work is over is idiotic. That is the superstition of the plaintiff bar. Stemming from Medieval church doctrine, and being unscientific it violates the Establishment Clause, and the Daubert doctrine. By its propulsion by outcome bias, it also violates the procedural due process right of the surgeon to a fair hearing. As a surgeon, I would sue the hospital for bias and retaliation.

Well, this discussion has certainly turned more interesting now that someone has had the guts to take the other viewpoint. I understand anon 8:20's point, and that is why Wachter makes reference to the tensions surrounding this issue. I would ask anon 8:20 frankly, is this about surgeons, specifically, escaping punishment for transgressions that hospital employees would not? If so, you would certainly not be the only one to feel that way. And I do think there is still a cultural attitude among surgeons that they are the captains of the ship and therefore make the rules. I worked with surgeons all my life and am married to one, and it is true that they feel the team concept only goes so far, that they bear the ultimate control and responsibility. However, the flip side of that is that they (the good ones, anyway) bear the blame alone when they do make a mistake, in a way that hospital employees do not. The doctor patient relationship demands that THEY are the ones to deal with the patient, the family, and all the accruing repercussions.THEY are the ones whose malpractice premiums go up and suffer a settlement of an indefensible case should a lawsuit occur. THEY are the ones to suffer the punishment of the state medical board should there be one. Thus there is a "punishment" for them that will not occur for other members of the team, even if the hospital takes no punitive action. I think it is important to keep this in mind when considering such a case.

The team concept is a double edged sword. It diffuses responsibility and also diffuses blame. I bet you don't see this surgeon saying it was anesthesia's or the scrub nurse's fault for not reminding him.

That said, I do think physicians in general and surgeons especially need to think more in terms of standard practice, policy and procedure. The physicians' culture of individual responsibility (and blame) just has to change in today's extremely complex environment. I think that is the biggest challenge for any hospital; to change that culture.Good luck to Paul and his chiefs of service in attempting to do so.

It is not unusual at my institution to allow the residents to operate independently on minor procedures or to "babysit" the patient if the attending needs to talk to the family or to go to the bathroom on especially long cases. Medicare rules state that the attending needs to be present for the "critical portions of the procedure". Is the rule that you state the surgeon broke a hospital policy or a state policy or what?